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Legal Challenges to Protecting Confidentiality and Source Material

There are several ways that others can attempt to acquire
information about your newsgathering activities, including through a
subpoena, search warrant, and discovery order in litigation. The most
common of these approaches is through a subpoena. This section will
detail when these methods may be used and their effects.

Subpoenas

A subpoena is a command to appear before a court. A subpoena can
either require you to appear in person to provide testimony or
information, or it can require you to provide specified documents,
records, or other material. You can be subpoenaed in cases where you
might not have realized you have relevant information.

Subpoenas are typically issued in the early stages of a case,
when parties are trying to learn information relevant to their cases.
In order to allow the parties in litigation to gather enough
information, American judges tend to be generous in granting subpoenas.

If you receive a subpoena, you must think carefully about how
to respond. You should not ignore it, since you can be punished for
doing so. Refer to the section in this guide on Responding to Subpoenas
for information on how to respond to a subpoena. If the subpoena
relates to information you collected as part of your newsgathering or
publishing activities, you might be able to defeat the subpoena and
avoid having to appear or disclose information, see the Legal Protections for Sources and Source Material section for more information.

Search Warrants

Search warrants are orders by judges allowing police or other
law-enforcement to search a location and take evidence. Search warrants
are used in criminal cases. In most situations, the Fourth Amendment to the U.S. Constitution
requires police to obtain a search warrant before they can search
private premises. To obtain a warrant, police must demonstrate to a
judge that they have "probable cause" to believe that the search will
yield evidence of a crime.

If police do not have a warrant and wish to conduct a search
of your premises, you may say no. For most people, if police have a
valid search warrant, the search they conduct pursuant to the warrant
is legal.

If you receive a search warrant that relates to information
you collected as part of your newsgathering or publishing activities,
you may be able to get it withdrawn. The federal Privacy Protection Act
prohibits the issuance of a search warrant directed at documentary
materials possessed by a person in connection with a purpose to
disseminate to the public a newspaper, book, broadcast, or other
similar form of public communication. Please see the Legal Protections for Sources and Source Material section for details.

Discovery Orders

When you are a party to litigation, the opposing parties may use
discovery orders to obtain information from you. Discovery orders can
take a number of forms. For instance, they may require you to provide
documents, or they may require you to answer questions in a deposition.
The purpose of discovery orders is to allow all parties to have
information so that they can pursue their arguments in court.

In federal courts in the U.S., and in most state courts,
judges allow parties to conduct broad discovery -- they are generally
willing to allow parties to get the information they request. Discovery
orders are legally binding, and you can be punished for ignoring them.
If you wish to challenge a discovery order that requests something from
you, you must do so by notifying the judge who issued the order. The
exact reasons you can challenge an order vary by court and
jurisdiction. In general, you might be able to object that the
information requested is not relevant to the case for which it was
requested, that too much information was requested and only some is
relevant to the case, that the request is unduly burdensome, or that
you should not have to reveal newsgathering information. To determine
whether you can avoid revealing your newsgathering information and
sources, see Legal Protections for Sources and Source Material.

Keep in mind, however, that if you are a defendant in a lawsuit,
your newsgathering materials and source information may be relevant --
or even essential -- to your defense. For example, if you relied on a
confidential source for a statement that the plaintiff claims is
defamatory, you may be in a position where you need to identify your
source in order to show that it was reasonable for you to rely on that
source for the information you published. If you refuse to provide the
requested information, you may lose your ability to fully defend
yourself.

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Disclaimer

Information in this guide is based on general principles of law and is intended for information purposes only; we make no claim as to the comprehensiveness or accuracy of the information. It is not offered for the purpose of providing individualized legal advice. Use of this guide does not create an attorney-client or any other relationship between the user and the Digital Media Law Project or the Berkman Center for Internet & Society.

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